92 Decision Citation: BVA 92-09413
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-48 931 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
psychiatric disability.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
back disability.
3. Whether the appellant's appeal from a decision dated in
August 1969 was timely filed.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and friend
ATTORNEY FOR THE BOARD
Richard D. Turano, Associate Counsel
INTRODUCTION
The appellant had active duty for training from February 4,
to April 8, 1969. In a rating action dated in August 1969
the agency of original jurisdiction denied the appellant's
claim for service connection for a psychiatric disability
and a back disability. The appellant was informed of this
determination by letter dated in September 1969. He did not
submit an appeal within one year of notice of that
decision.
The appellant attempted to reopen his claim for entitlement
to service connection for a psychiatric disability and a
back disability in June 1990. This matter came before the
Board on appeal from a November 1990 decision by the
Houston, Texas, Regional Office. A notice of disagreement
was received in March 1991. The statement of the case was
issued in May 1991. A substantive appeal was received in
May 1991. A personal hearing was conducted at the regional
office in June 1991. A supplemental statement of the case
was issued in July 1991. The appeal was docketed at the
Board in November 1991. The appellant has been represented
by The American Legion who provided additional written
argument in February 1992.
REMAND
The appellant has asserted that he had a nervous breakdown
during basic training due to the harsh discipline imposed
upon him by his drill instructor and that a fall aggravated
a back disability which he asserts existed prior to
service. Furthermore, he states that when he was originally
notified of the denial of his claim for service connection
in 1969 he was too sick to appeal the decision. He reports
that he was in a catatonic state. The service medical
records in March 1969 show a diagnosis of schizophrenic
reaction. The appellant asserts that he has been treated
regularly at the Northwest Mental Health Center and has
requested that these medical records be obtained. He has
testified that he has been treated by private physicians
from 1979 and was hospitalized in 1977 or 1978 at the
Department of Veterans Affairs (VA) Medical Center, Houston,
Texas. A discharge summary from this medical center
indicates he was hospitalized from June 18, 1969, to July
25, 1969, for anxiety state, chronic, and chronic
lumbosacral back strain. The admission psychiatric
diagnosis was a personality disorder. It is unclear whether
the complete hospital records from this period of
hospitalization have been obtained.
Letters in 1968 from William H. Mott, M.D., indicate the
appellant was seen and examined prior to service due to low
back pain and that X-rays revealed spondylolysis with slight
spondylolisthesis at L5-S1. These findings were not
confirmed by the service department. Accordingly, it is the
judgment of the Board that further evidentiary development
of this case is warranted and attempts should be made to
secure any records prior to and subsequent to the
appellant's military service which may be pertinent to the
issues currently on appeal. Therefore, this case is hereby
REMANDED to the agency of original jurisdiction for the
following action:
1. The agency of original jurisdiction
should request that the appellant submit
a detailed list of all treatment from
private medical facilities received prior
to and subsequent to military service and
he should be requested to furnish all
necessary releases so that any records
available may be secured. Any records
available from Dr. Mott who treated the
appellant for a back disability prior to
service and from Drs. Campbell and
Kendricks who reportedly treated the
appellant beginning in 1979 should be
secured. Additionally, records from the
Northwest Mental Health Center, 3737
Dacoma, Houston, Texas 77092, should be
obtained.
2. The agency of original jurisdiction
should obtain copies of any inpatient or
outpatient treatment for this appellant
from the Department of Veterans Affairs
(VA) Medical Center Houston, Texas.
Complete hospital records from the
appellant's period of hospitalization
beginning in June 1969 should be secured
as well as any other available records,
including any admission in 1977 or 1978.
When the requested development has been completed, the
agency of original jurisdiction should review these claims.
In the event findings remain adverse to the appellant, he
and his representative should be furnished a supplemental
statement of the case and be afforded the appropriate
opportunity within which to respond. The case should then
be returned to the Board after compliance with all
appropriate appellate procedure. No action is required of
the appellant until he receives further notice. Appellate
disposition of these issues is hereby deferred pending
completion of the above action.
The Board intimates no opinion, either legal or factual, as
to the disposition warranted for these claims.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
JAMES R. ANTHONY
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
(CONTINUED ON NEXT PAGE)
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1991), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.